Daily Times

The Supreme Court with 3-2 split decision on a Presidential reference seeking its interpretation of Article 63-A while rendering its opinion on May 17 2022 said that the votes of lawmakers who defect from their parties would not be counted in four instances outlined under the article including election of the Prime Minister and Chief Minister, a vote of confidence of and no-confidence, Amendment in constitution and money bill.

The Supreme Court Bar Association (SCBA) filed a petition in the apex court on 22nd June 2022 for a review of the court’s May 17 decision on the interpretation of Article 63-A which was put on the back burner and has not seen the light of the day since then.

The President had filed the reference under Article 186 of the constitution in which the apex court has an advisory jurisdiction. The Article reads” (1)If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2)The Supreme Court shall consider a question so referred and report its opinion on the question to the President” As is evident under this Article the court gives only its opinion and not the decision on the relevant clause of the constitution pertaining to the questions asked. However, the Article is silent in regards to whether the opinion given by the SC is binding and enforceable like the verdicts given by it under its original and appellate jurisdiction or not.

The opinion of SC not only vitiated spirit of Articles 63-A, but also practically rendered redundant Article 95 of the constitution which allows the members of the parliament to move a no-confidence against the sitting Prime Minister.

Seeking review on the opinion of the SC was imperative in view of the fact that out of five judges, two had expressed their dissent. They maintained “Article 63-A is a complete code in itself which provides a comprehensive procedure regarding defection of a member of the parliament and consequences thereof. Any further interpretation of it, in our view would amount to re-writing the constitution and will also affect other provisions of the constitution, which have not even been asked by the President. Therefore it is not our mandate and we see no force in the questions asked through this Presidential Reference”

The opinion of the majority judges which said “The vote of any member of a parliamentary party in a House that is cast contrary to any direction issued by the latter in terms of para (b) of clause (1) of Article 63-A cannot be counted and must be disregarded and this is so regardless of whether the party head subsequent to such vote proceeds to take or refrains from taking action that would result in a declaration of defection.” does not conform to the contents of the relevant Article. The judges by saying that a member would be treated as having defected even if the head of the party does not initiate action against him have actually tried to add to the text of the relevant Article which they are not competent to do. The SCBA has rightly held that the interpretation that the vote of the dissenting members would not be counted is against the constitution.

The opinion of SC not only vitiated spirit of Articles 63-A, but also practically rendered redundant Article 95 of the constitution which allows the members of the parliament to move a no-confidence against the sitting Prime Minister. The motion is presented usually by the opposition with the help of members from the treasury benches and independents and if it is done by members of the ruling party to get rid of an errant Prime Minister, they usually enlist the support of the opposition. With the current opinion of the apex court that possibility has been foreclosed for all times to come. It also circumvents the procedure laid down in the Article for determining defection of a member of the parliament. The judiciary by rendering this opinion opened a Pandora Box of legal battles besides precipitating political crisis in the country, particularly in Punjab. The SC judges acted as legislators which is not their mandate.

A renowned jurist and eminent judge Jackson of the US Supreme Court said that the apex court is not final because it is infallible, but it is infallible because it is final. This observation has assumed the significance of a legal maxim and is universally accepted. What it means is that by virtue of being the ultimate forum of justice the apex court becomes infallible and its decisions become binding irrespective of the fact whether they are good or bad.

In the domain of jurisprudence it is also an internationally settled principle that judges are not legislators but adjudicators interpreting the text of the constitution and law laid out by the legislators and stating what the text means. They cannot even change a coma in the text of the constitution. It is also agreed that the judges while delivering their verdicts must exercise utmost restraint. Which envisages refusal to exercise judicial review in deference to the process of ordinary politics as it supports the process of democratic self-governance as one of the main political ideals in a democratic dispensation.

History of Pakistan is replete with judicial decisions that were given in breach of the settled constitutional principles, by inventing judicial dogmas like doctrine of necessity and validating conspiratorial removal of chief executives which have had profound debilitating impact on development and consolidation of democracy in Pakistan besides promoting fissiparous tendencies in the society. But they were all accepted and implemented irrespective of their consequences. Perhaps it would be pertinent to mention a few of them.

The first such case was when the Constituent Assembly was dissolved by Governor General Ghulam Mohammad in 1954. Maulvi Tamizuddin challenged the dismissal in the High Court which overturned the order of the Governor General. However the Federal Court (Supreme Court) under Justice Muhammad Muneer upheld the dissolution by inventing the doctrine of necessity. Justice A. R. Cornelius was the sole dissenting judge. The Supreme Court also validated the Martial Law by Ayub Khan relying on the doctrine of necessity. The military dictators down the line also benefitted from the doctrine of necessity. Hanging of Zulfiqar Ali Bhutto ordered by the Supreme Court headed by Justice Anwar ul Haq is widely regarded as judicial murder.

The Chief Justice is requested to also take up the petition filed by SCBA by forming a full bench or a larger bench to rectify the wrong done by the concerned SC judges by going beyond their constitutional powers. It is an issue of utmost national importance. In my view the government should also file an appeal immediately against this verdict for which a window has been opened with the recent approval of Supreme Court Practice and Procedures Act 2023.

The writer is a former diplomat and freelance columnist.